Charlie Ritsikos v R.I. Brown Pty Ltd T/A R.I. Brown Pty Ltd

[2013] FWC 2535

[2013] FWC 2535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charlie Ritsikos
v
R.I. Brown Pty Ltd T/A R.I. Brown Pty Ltd
(U2012/15998)

COMMISSIONER BLAIR MELBOURNE, 26 APRIL 2013

S.394 application for unfair dismissal remedy

[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) lodged with the Fair Work Commission (the Commission) for unfair dismissal remedy. The application was made by Mr Charles Ritsikos (the Applicant) against his former employer, R.I. Brown Pty Ltd (the Respondent). The matter was not conciliated and was therefore arbitrated on 4 and 5 March and 16 April 2013. The following decision (now edited) was handed down at the hearing:

[2] The Applicant started employment with the Respondent in April 2006 and was terminated on 14 November 2012. There was an exchange of correspondent between the Applicant and the Respondent beginning on 5 November 2012 and finishing with a letter of termination dated 14 November 2012.

[3] The Respondent relies upon a genuine redundancy argument but the Commission notes that in the correspondence there is no issue raised regarding possible redundancy or that the reasons for termination were based on a genuine redundancy.

[4] The Commission is satisfied that there had been some discussions regarding the financial state of the Respondent. The employees, particularly the Applicant, was well aware that the Respondent was going through some financial difficulties and required some restructuring. However, the termination letter dated 14 November 2012, in not referring to redundancy, satisfies the Commission that the termination was not based on a genuine redundancy at the time. It was based on a breakdown in the relationship between the Respondent and the Applicant.

[5] It is obvious to the Commission that the Respondent was very dissatisfied and saw the responses from the Applicant as somewhat arrogant and not receptive to what was being proposed in terms of changes within the work place. Was there a valid reason for termination?

[6] The Commission is satisfied that based on the letter dated 14 November 2012, there was not a valid reason for the termination at that point in time. There were no discussions at that point about any way in which the relationship could have been improved and most certainly everything that was done was by way of correspondence. There was no opportunity for the Applicant to meet with the Respondent, nor was the Applicant offered an opportunity, if a meeting were to occur, to have a support person with him.

[7] Having determined that there was a not valid reason for termination on 14 November 2012, the Commission does not have to turn its mind to the issue of whether the termination was harsh, unjust and unreasonable.

[8] The Commission, then, turns its mind to the issue of remedy. As reinstatement is not a remedy in this matter, the Commission then turns its mind to the issue of compensation.

[9] Section 392(2) of the Act states as follows:

392 Remedy—compensation
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

[10] Taking into account those factors and also acknowledging that discussions had occurred between the parties, concerning the financial state of the organisation, the Commission is satisfied that the period of employment that the Applicant could have enjoyed if he had not have been terminated would not have been a great length of time.

[11] The Commission is satisfied that the Respondent would have ultimately made the Applicant redundant and it is satisfied that that possibly would have occurred probably in a four week period but no more than an eight week period. Taking into account the affect of the order on the viability of the Respondent and the length of service by the Applicant and the remuneration that he would have received or would have been likely to receive had he not been dismissed, the efforts to mitigate this loss and any amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation, the Commission accepts the figure of $240 per week as a nett loss as put forward by the Respondent’s representative, based on the Applicant’s own evidence.

[12] That being the case, the Commission would determine that the Applicant’s employment would not have lasted any more than six weeks. Therefore, it would award the sum of $1,440 (gross) to be paid within 14 days from the date of the issue of the order.

COMMISSIONER

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